Last Updated on October 30, 2023 by G. T. HR

Please note this article does not contain legal advice and is for informational purposes only

In a bid to modernize and enhance the efficiency of the Employment Eligibility Verification (Form I-9) process, the Department of Homeland Security (DHS) has introduced a new final rule that offers remote document verification alternatives to the traditional physical document examination. The final rule, published in the Federal Register on July 25, 2023, grants the Secretary of Homeland Security the authority to authorize alternative documentation examination procedures, provided they offer an equivalent level of security to the existing physical examination method.

Background and Purpose of the Final Rule

The primary purpose of the final rule is to facilitate a more streamlined and flexible approach to the Form I-9 process, making it easier for employers and employees alike to comply with employment eligibility verification requirements. The traditional regulations mandate that employers physically examine the documents presented by new employees within three business days of their first day of employment. However, the new final rule aims to provide qualified employers with alternative methods to complete the Form I-9 process while maintaining the same level of security.

Who Can Use the New Remote Documentation Verification Procedure?

The alternative procedure is initially available only to qualified employers who are participants in good standing in the E-Verify program. E-Verify is a web-based system provided by the US Citizenship and Immigration Services through which employers electronically confirm the employment eligibility of their employees.

Employers enrolled in E-Verify must verify the employment eligibility of newly hired employees in the United States, as well as comply with all E-Verify program requirements. To use the alternative procedure, qualified employers must also complete an E-Verify tutorial that includes fraud awareness and anti-discrimination training.

E-Verify can be performed directly through the E-Verify Employers portal or it can be performed through a Consumer Reporting Agency such as MyHRScreens’ I-9 and E-Verify solution. You can find more information on the E-verify compliance and the Do’s and Don’ts of using the program HERE.

Core Components of the Alternative Procedure

Under the alternative procedure, qualified employers may use innovative methods to verify an employee’s identity and employment eligibility without the need for in-person physical document examination. Instead, the procedure involves a combination of remote verification and live video interaction, offering an equivalent level of security as traditional physical document examination. The steps are as follows:

1. Examine copies (front and back, if applicable) of Form I-9 documents or an acceptable receipt to ensure the documents reasonably appear to be genuine.
2. Conduct a live video interaction with the employee to further verify the authenticity of the presented documents and their relation to the individual.
3. Indicate on the Form I-9 that the alternative procedure was used for document examination. (Note that if using the Form I-9 (Edition: 10/31/2019) during the grace period between 8/1/2023 and 10/31/2023, the employer must write “alternative procedure” in the Additional Information field in Section 2.)
4. Retain clear and legible copies of the documentation for potential future audits or investigations by relevant federal government officials.

Document Retention and Reporting Requirements

Employers opting for the alternative procedure must retain clear and legible copies of the documents presented by the employee, along with their Form I-9. These copies will be essential for auditing purposes and ensuring compliance with employment eligibility verification requirements.

Qualified employers must also indicate on the Form I-9 that the alternative procedure was used for document examination. Failure to comply with these requirements may result in penalties under section 274A of the Immigration and Nationality Act (INA).

If the employer utilizes the current Form I-9 (Edition: 10/31/2019) during the grace period between 8/1/2023 and 10/31/2023, the employer must write “alternative procedure” in the Additional Information field in Section 2.

Implementation and Future Evaluation

The new alternative procedure is set to go into effect on August 1, 2023. However, employers may continue using the previous version of the Form I-9 (Edition: 10/21/2019) until October 31, 2023. After this grace period, employers must use the updated Form I-9 (Edition: 08/01/2023).

DHS will closely monitor the implementation of the alternative procedure and conduct audits to evaluate its impact on system integrity and potential risks of fraud. Based on the data collected, the Secretary may announce further changes or seek public comment as necessary.

Use of Alternative Rules For Review of Form I-9 During COVID-19 Remote Verification Period

From May 20, 2020, to July 31, 2023, employers were allowed to perform remote inspections for Form I-9 verifications due to the COVID-19 pandemic. However, employers who utilized the temporary flexibilities to remoted examine employee documents during this period must ensure they physically examine those documents in person by August 30, 2023.

If an employer meets the following conditions they will be allowed to use the new Alternative Rules for examining the documents related to this period: (1) were enrolled in E-Verify at the time they performed a remote examination of an employee’s Form I–9 documentation for Section 2 or reverification while using the COVID–19 flexibilities, (2) created an E-Verify case for that employee (except for reverification), and (3) performed the remote inspection between March 20, 2020 and July 31, 2023, can use the alternative procedure to satisfy the required physical examination of the employee’s documents for that Form I–9. Such employers should not create a new case in E-Verify.

Employers who were not enrolled in E-Verify at the time they initially performed a remote examination of an employee’s documents ( i.e., within three business days of the employee’s first day of employment) under the COVID–19 flexibilities between March 20, 2020 and July 31, 2023, are required to physically examine the employee’s Form I–9 documents in the employee’s physical presence.

Conclusion

The introduction of the alternative procedure for Employment Eligibility Verification (Form I-9) offers qualified employers a flexible and innovative approach to remote document verification. By leveraging modern technology and live video interactions, the new procedure aims to enhance efficiency while maintaining an equivalent level of security. However, it is essential for employers to remain compliant with all applicable regulations, as audits and investigations will still be carried out to ensure the integrity of the process. As the implementation of the alternative procedure begins, employers should familiarize themselves with the new requirements and take the necessary steps to transition smoothly to the updated Form I-9 process.

MyHRConcierge Will Help You Navigate the New Remote Documentation Verification Rules

MyHRConcierge has HR experts to help you navigate these new remote document verification rules. Contact us today at 855-538-6947 ext 108, ccooley@myhrconcierge.com or schedule a consultation below.

If you need assistance utilizing E-verify, contact MyHRScreens at 866-899-8970 ext 118 or klewis@myhrscreens.com or schedule a consultation below.